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2023
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[2023] ZAFSHC 371
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Smith N.O and Another v Du Preez (2734/2022) [2023] ZAFSHC 371 (27 September 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
Number: 2734/2022
Reportable:
NO/YES
Of
Interest to other Judges: NO/YES
Circulate
to Magistrates: NO/YES
In
the matter between:
ELRICH
RUWAYNE SMITH N.O.
First Applicant
ETHNE
MARY VAN WYK
Second Applicant
And
PETRONELLA
SOPHIA DU PREEZ
Respondent
HEARD
ON:
This
application was
determined on the basis of written
arguments instead of an oral hearing.
JUDGMENT
BY:
DANISO, J
DELIVERED
ON:
27 SEPTEMBER 2023
[1]
The applicants seek leave to appeal the judgment I rendered on 3
March 2023 in terms
of which I dismissed the applicants’
application to place the respondent’s estate under provisional
sequestration.
The applicants were ordered to pay the costs.
[2]
The application is, by consent of the parties determined on the basis
of written heads
of argument filed by the applicants.
[3]
The grounds for leave to appeal are embodied in notice of appeal and
are
essentially premised on the grounds that this court erred: in
holding that the applicants did not discharge the onus to
prima
facie
establish that the respondent’s liabilities exceeded
the total of her assets; by ignoring and even failed to appropriately
consider the skimpy information provided by the respondent regarding
her financial position; in finding that the applicants should
have
provided expert valuation of the respondents’ assets and this
is despite the fact that the applicants were not aware
of the
respondent’s financial position; and not finding that the
provisional sequestration of the respondent’s estate
will be to
the advantage of the creditors.
[4]
In terms of section 17(1) (a) of the Superior Courts Act
[1]
(“The Act”), leave to appeal can only be granted where I
am of the opinion that the appeal would have a reasonable
prospect of
success or there is some other compelling reason why the appeal
should be heard, including conflicting judgments on
the matter under
consideration.
[5]
It was pointed out in
S
v Smith
2012
(1) SACR 567
(SCA)
[2]
that:
“
What
reasonable prospects of success postulates is a dispassionate
decision, based on the facts and the law, that a court of
appeal
could reasonably arrive at a conclusion different to that of the
trial court. In order to succeed, therefore, the
appellant must
convince this court on proper grounds that he has prospects of
success on appeal and that those prospects are not
remote, but have a
realistic chance of succeeding. More is required to be
established than that there is a mere possibility
of success, that
the case is arguable on appeal or that the case cannot be categorised
as hopeless. There must, in other words,
be a sound, rational basis
for the conclusion that there are prospects of success on appeal
.”
[6]
As correctly pointed out by the respondents, in my judgment (pages 17
to 22) I have
indeed alluded to the fact that the applicants were
expected to make out their case on a
prima
facie
basis
for the relief they sought and except to provide conclusive proof of
the respondent’s failure to pay the debt when called
upon to do
so, no
prima
facie
evidence
was established on the applicants’ affidavit in respect of
whether the respondent’s assets were exceeded by
her debts, for
that reason I was not satisfied that the applicants had made out a
case for a sequestration order. There is a plethora
of cases with
regard to what constitutes a
prima
facie
case.
See
Ohlsson’s
Cape Breweries Ltd v Totten
[3]
Lotter
v Arlow & Another,
[4]
Kali
v Decotex (Pty) Ltd and Another.
[5]
[7]
I’m of the view that my main judgment has adequately dealt with
all the aspects
raised by the applicants in their grounds of appeal.
I am thus not persuaded that the issues raised by the applicants
herein would
have reasonable prospects of success,
[6]
there is also no compelling reason why the appeal should be heard
therefore, the
application
for leave to appeal stands to be dismissed.
[9]
In the result the following order is made:
1. The
application for leave to appeal is dismissed.
NS
DANISO, J
For
the applicants:
Mr.
E. Visser
Etiene
Visser Attorneys
BLOEMFONTEIN
For
the respondent:
Mr.
AJ Callis
Callis
Attorneys Inc.
BLOEMFONTEIN
[1]
Act No, 10 of 2013.
[2]
Para 7.
[3]
TPD
48
at 50.
[4]
2002
(6) SA 60
(T).
[5]
1988
(1) SA 943
(A).
[6]
Chithi
and Others
;
In re:
Luhlwini
Mchunu Community v Hancock and Others
[2021]
ZASCA 123
(23
September 2021) Para 10.